State V. Philpotts – Ohio Supreme Court Justice Brunner’s Dissent

The Supreme Court of Ohio ordered all parties in State v. Philpotts to file supplemental briefs addressing the impact on the case of the US Supreme Court’s decision in NYSRPA v. Bruen. Given the import of the Bruen decision on both the state and federal level, this seem eminently reasonable.

That is except for Justice Jennifer Brunner (D-Ohio) who seems to take the first line of Sam Cook’s classic What a Wonderful World as her motto. She issued a dissent in which she objected to this order of the Ohio Supreme Court.

After rambling on about it being hard to convey lessons from history, about how revisionists have re-written history to make it fit modern times, and how it is hard to use primary documents, she comes up with this objection to the use of text, history, and tradition.

{¶ 8} Importantly, the glaring flaw in any analysis of the United States’ historical tradition of firearm regulation in relation to Ohio’s gun laws is that no such analysis could account for what the United States’ historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations. How would this problem be addressed in any modern analysis of historical gun regulations? It cannot simply be ignored. And even if a court tries to take the views of women and nonwhite people into account, are there sufficient materials on their views available to enable reliable conclusions to be made? (emphasis mine)

Does she not know that gun control was historically used to keep nonwhite people disarmed and disenfranchised? There have been many books and articles on this such as Prof. Nicholas Johnson’s book Negroes and the Gun: The Black Tradition of Arms. Perhaps she is unaware of Ida B. Well’s seminal work on lynchings in which she said, “a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.” A very recent study by economists at Clemson found that when blacks had greater access to firearms, the incidence of racial violence and lynchings was diminished.

Does Justice Brunner really think that nonwhite people preferred being disarmed in the 18th, 19th, and 20th centuries? Since there were no laws preventing women from being disarmed, I will skip that except to say that Annie Oakley was a damn fine shot.

And to answer her question, yes there are sufficient materials available to discern the views of nonwhites on gun control with which to enable the court to come to a reliable conclusion.

UPDATE: I found out this evening that Justice Brunner is running as the Democrat candidate for Chief Justice of the Ohio Supreme Court. Among her pledges is for “bail reform”. Given the experience in other states with “bail reform”, it seems a recipe for more property and violent crime in Ohio. That, when combined with her willful ignorance of history, makes her totally unsuited for the position she seeks.

Her opponent, Justice Sharon Kennedy, has the endorsement of the Buckeye Firearms Association along with many law enforcement organizations. Before she went to law school, Justice Kennedy was a police officer in Hamilton, Ohio. Justice Brunner, by contrast, has a number of union endorsements but not a one of them deals with law enforcement.

If you live in Ohio, I would urge you to get out to vote for Justice Kennedy and get your friends, family, and neighbors to do the same.